Assessing the Interactions between Native American Tribes and the U.S. Government in Homeland Security and Emergency Management Policy

Assessing the Interactions between Native American Tribes and the U.S. Government in Homeland Security and Emergency Management Policy

Leigh R. Anderson (The Ohio State University, USA)
DOI: 10.4018/978-1-5225-0703-1.ch003
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Abstract

The working relationships between Native American tribes, the states, and the federal government have been strained for centuries. These intergovernmental interactions have led to a fragmented system whose attempt to deliver public service is consistently met with opposition. One area where this has become increasingly evident is within homeland security and emergency management policy. This study used a cross sectional survey to gather information about the beliefs tribes held about the various aspects of their working relationships with states and the federal government within the context of homeland security and emergency management. Analysis of the data revealed that the majority of the intergovernmental relationships that existed between tribes and the U.S. government did not possess the characteristics of an effective working relationship. Evidence also suggests that the intergovernmental relationships were actually having a negative impact on the U.S. government's goal to achieve a unified system of homeland security and emergency management on American soil.
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Background

Native American Tribes within the United States of America

This study will help to provide a foundation upon which to build future studies in the field of public policy and homeland security focused on Indian country. As sovereign nations within the borders of the United States, Native American tribes hold a very distinct political and legal position. Native American tribes entered into agreements and compromises with the United States government; however, tribal nations never forfeited their sovereignty when entering into those agreements and as a result remain independent, occupying a position of sovereign immunity (Evans, 2011; McGuire, 1990) on U.S. soil.

Being sovereign nations within another sovereign nation, Wilkens (1993) acknowledges that from a theoretical and political perspective, tribes are in a legal and political quandary. As a result of these sovereign positions, much of the interaction between tribal nations and levels of the American government has been grounded in intergovernmental conflict for centuries. The conflict has consistently pit tribal governments against state, local, and the federal government regarding jurisdiction, gaming regulations, natural resources, tax obligations, and most recently, homeland security funding. In theory, tribes are to be sovereign, but in practice, they hold many other conflicting positions. As separate nations within another politically functioning nation they also simultaneously play subordinate roles.

Much of the existing literature on this topic paints a picture of hostility that is seated within the U.S. government, namely the states, and is directed towards tribal nations (Evans, 2001; Bays and Fouberg, 2002). In fact, the interactions between states and the tribal nations have been cited as one of the most divisive intergovernmental conflicts within United States history (McCool, 1993; Mason, 1998, 2002; Wilson, 2002; Steinman, 2004). Scholars have sought to increase awareness of these conflicts and their harm to intergovernmental relations between the two systems of governance. They have classified the historical and contemporary components of these relationships as crucial. In this study’s effort to explain ways to move past this conflict in the area of homeland security emergency management policy, it is important to engage the information put forth by these authors.

Aside from various treaties, Presidential Executive Orders, and Supreme Court rulings, the Constitution is the only formal document that acknowledges tribal governance as a system apart from the American system of federalism. Native American tribes are referred to in the Commerce and the Apportionment Clauses of the Constitution. Based upon the wording, the relationship between the federal government and tribes is one between sovereign nations and exclusive authority over Native American affairs lie with the federal government, not the state (Ortiz, 2002; Jarratt-Ziemski, 1999; National Council of American Indians, n.d.). However, there is concern that decision-making powers are shifting from the federal government to the states; this shift is giving states control over federal dollars and more say in how and where those dollars should be spent at the expense of the tribes (Ortiz, 2002).

Despite the existence of federal tribal policy, which intends that states should have no control over affairs in Indian Country, the federal government has often delegated many responsibilities to the states; thus, giving states decision-making and fiduciary control over many policy areas including emergency preparedness and homeland security. The creation of this indirect line of authority between tribes and the states has further complicated existing disagreements. It begs the question of whether or not the same interactions are taking place in the area of emergency management and homeland security.

In addition to tribes sitting outside the parameters of the federalist system, differences in culture and identity also influence the interactions between tribal nations and the U.S. government. Tribal governance incorporates such issues as tribal culture, history, social interactions, laws, jurisdiction, and sovereignty; therefore, it is critical to understand why Indian country wishes to retain their ways of governance (Ortiz, 1999). There is indeed a difference between the cultural and traditional aspects of American governance and that of tribal governance. These differences present very real barriers to conflict resolution between these two governance systems.

The culture and identity differences that make interactions difficult and conflict highly probable are not just about differences between Indian county and the U.S., but also include variations in culture and identity amongst tribal nations themselves. As Bays and Fouberg (2002) articulate, culture, population, land base ownership, histories, languages, governance structures, and traditions, all vary amongst Native American tribes themselves. Understanding how culture and identity can impact public policy is essential, especially in emergency management. Changes in culture and identity are not negotiable nor should they be jeopardized. If culture and identity are impacting the success of intergovernmental relationships in a negative way, then it is necessary to figure out ways to look beyond this influence.

Key Terms in this Chapter

Trust Responsibility: the responsibility of the federal government to honor treaties, compromises, and other bound agreements by inheriting the expectation to honor those agreements for the best interests of the tribes and its members.

National Response Framework (NRF): is a guide to help governments plan and prepare for the ability to provide a unified response across jurisdictions to any manmade and natural disasters.

Unified System of Homeland Security and Emergency Preparedness: The unified approach to homeland security and emergency preparedness has included efforts to “provide a systematic, proactive approach to guide departments and agencies at all levels of government, nongovernmental organizations, and the private sector to work seamlessly to prevent, protect against, respond to, recover from, and mitigate the effects of incidents, regardless of cause, size, location, or complexity, in order to reduce the loss of life and property and harm to the environment (FEMA, 2010 AU73: The in-text citation "FEMA, 2010" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ).” According to the Department of Homeland Security’s National Response Framework (2007) AU74: The in-text citation "Response Framework (2007)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , to be able to achieve an effective system of unified command, there needs to be unity of effort which must extend across multiple geographic and legal jurisdictions. FEMA made it clear that emergency management is a difficult function that must frequently cross jurisdictional boundaries (Waugh, 1994 AU75: The in-text citation "Waugh, 1994" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ). Like the foundation for achieving a unified system of command, in order to be able to execute effective emergency management strategies, it is crucial that there be cooperation and coordination across jurisdictions. To be more specific, FEMA’s agency policy warns that within the field of emergency management, the agency expresses that problems are shared and so too should responsibility. It goes on to note that the agency refrains from providing assistance to only one jurisdiction or government and consequently placing in jeopardy the interests of needs of another government (Federal Registrar, FEMA Tribal Agency Policy, 1999 AU76: The in-text citation "FEMA Tribal Agency Policy, 1999" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ).

Native American Tribes: the term “tribe” interchangeably with “American Indian”, “Native American”, and “tribal nations.” As used throughout this study, these terms refer to “any Federally-recognized governing body of an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of Interior acknowledges to exist as an Indian tribe under the Federally Recognized Tribe List Act of 1994, 25 U.S.C 479a (FEMA, 2010 AU71: The in-text citation "FEMA, 2010" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. ).” For clarification purposes as designated by the Department of Interior, Bureau of Indian Affairs (2013) AU72: The in-text citation "Indian Affairs (2013)" is not in the reference list. Please correct the citation, add the reference to the list, or delete the citation. , “federally recognized tribes are recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, services, and protections because of their special relationship with the United States.”

Homeland Security Grant Program (HSGP): established in 2003 and consisting of three separate, yet interrelated programs: the State Homeland Security Program (SHSP), the Urban Areas Security Initiative (UASI), and Operation Stonegarden (OPSG), the HSGP provides grant funds to state and local governments to increase funding for first-responder equipment, planning, training, exercises, and the collection of intelligence about potential attacks.

Intergovernmental Relations: the codependent and multifaceted relationships that exist between and amongst different levels of governments.

Tribal governance: incorporates tribal culture, history, social interactions, laws, jurisdiction, and sovereignty.

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